Restrictive covenants: what are they and how are they removed?

Restrictive covenants apply in property sales processes and they are legally binding commitments made by a property owner, which prevent them from doing certain things. These restrictions also pass down to any subsequent owners of the property for as long as the covenant remains in place. Typical examples of restrictive covenants are promises not to remove fences or trees, to erect other buildings on the land or property, not to park caravans, not to use the building for certain activities and not to store certain items in it.

In many cases, people assume that if planning consent is needed (or given), it affects restrictive covenants. But the fact is that land law and planning law is entirely separate, and planners are very unlikely to have any knowledge of restrictive covenants that may exist when they consider a planning application.

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Why are these covenants used?

Restrictive covenants are made in order to benefit or safeguard the property in some way. One common example is modern housing developments which tend to contain a number of these restrictive covenants so that developers can ensure the estate continues to look its best – helping to sell further properties and maintain its appeal. In these instances, covenants may be in place that affect the way that front gardens are managed, to prevent obnoxious smells, prevent industrial activity within the estate, avoid fire hazards, unwanted noise and so forth.

How to find out if a property is subject to a restrictive covenant?

If a property has a restrictive covenant attached to it, it will be recorded by the Land Registry’s official Title of Register in the C section. This section lays out any burdens which might affect the property’s ownership in some way. A restrictive covenant will be created and found in a conveyance or transfer deed, and the document will include detailed information about these restrictions, even if the title register does not have this information.

If covenants are only in effect for a section of the land, the title plan will hatch or tint the affected area and then the detail will be provided in the Title Register. So to find out if a property has any kind of restrictive covenant and the details of it, it’s best to get hold of the property’s title plan, title register and accompanying conveyancing deeds. All of these three documents are needed to make sure you have the full detail. Ascot solicitors and those elsewhere can provide further advice.

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What happens if a covenant is breached?

If a restrictive covenant is breached in some way, a lawsuit for damages may follow, even if the breach was not made intentionally. The responsible party may find that they have to pay damages to the affected party – which can be substantial – and/or they may be forced to alter or reverse the development or work that was carried out, in breach. As part of this remedial process, the claimant is likely to make an injunction which will prevent the property owner from continuing with any development until the legal process is completed. You can find out more from specialists such as Parachute Law Ascot Solicitors.

Can covenants become obsolete?

As restrictive covenants are tied to the property and land that they apply to, they remain in perpetuity and bind the property owners forever, provided that three conditions remain in place. Firstly, that the covenant isn’t personal, secondly that it exists to protect the property rather than any individual covenant beneficiary and that it affects the property’s value or the way in which it is used.

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